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Friday, September 12, 2014

Service matter - while obtaining peon job showing less qualification is not such a grave offence to remove from service - High court in a writ order for reinstatement and also order to impose some penalty - Apex court confirm the same = CIVIL APPEAL NO. 4335 of 2007 LIFE INSURANCE CORPORATION OF INDIA & ORS ….APPELLANTS VERSUS TRIVENI SHARAN MISHRA ….RESPONDENT = 2014 - Sep. Month - http://judis.nic.in/supremecourt/filename=41863

Service matter - while obtaining peon job showing less qualification is not such a grave offence to remove from service - High court in a writ order for reinstatement and also order to impose some penalty - Apex court confirm the same = the writ
petitioner is directed to be reinstated in service. It is further
directed by the High Court that the appellant may consider to impose the
penalty against the present respondent as was awarded in the case of
Daluram Patidar, another employee of the appellant-Corporation.=
As per the qualification prescribed by the
appellant, a candidate was required to have passed Standard IX, but the
candidates who have passed Standard XII and have secured 50% or more marks,
Graduates or Post-graduates were not to be considered for the post. The
respondent (writ petitioner) in his application (Annexure P-3) for the
above post mentioned his qualification “Higher Secondary (XIth old)”. At
the end of the application dated 20th January, 1996, a declaration was
made by the candidate (writ petitioner) that he did not possess any other
qualification except the one mentioned in the application. The respondent
– writ petitioner appears to have got selected for the post of Peon.
However, after couple of years of his service, it was found that he
possessed Bachelor’s Degree and he was pursuing M.A.(previous) in Economics
at the time he applied for the post as above. On this, the respondent was
served with the charge-sheet by the appellant and departmental enquiry was
initiated. On conclusion of the departmental enquiry, the respondent (writ
petitioner) was found guilty of misconduct. Consequently, he was served
with the show-cause notice as to why he be not removed from the service.=suppression of material information and making false statement to securethe employment, is a serious offence to attract the dismissal of service.
In this connection, learned senior counsel for the appellants referred to
the case of Kendriya Vidyalaya Sangathan and Ors vs. Ram Ratan Yadav (2003)3 SCC 437.
But in our opinion, the aforesaid case referred on behalf of
the appellants cannot be applied to the present case for the reason that
in the said case the employee had concealed the facts relating to his
character and antecedents. In said case, the employee who was selected for
the post of a Teacher suppressed the information that a criminal caserelating to offences punishable under sections 323, 341, 294, 506-B readwith section 34 of Indian Penal Code was registered against him.As suchthe facts in the present case cannot be equated with the case referred.
13. From the papers on record before us, it appears that for mentioning
less qualification to secure the job, similarly situated another employee
(one Daluram Patidar) was let off by the Life Insurance Corporation of
India by awarding punishment of stoppage of increments for two years with
cumulative effect. We are of the opinion that the High Court has rightly
taken note of said fact while allowing the writ petition, and directing the
employer to consider the imposition of similar penalty after reinstatement
of the writ petitioner.
14. Therefore in view of the above discussion, we do not find any
sufficient reason to interfere with the impugned order passed by the High
Court. Accordingly, the appeal is dismissed. No order as to costs.

2014 - Sep. Month - http://judis.nic.in/supremecourt/filename=41863

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4335 of 2007

LIFE INSURANCE CORPORATION
OF INDIA & ORS ….APPELLANTS

VERSUS

TRIVENI SHARAN MISHRA ….RESPONDENT

J U D G M E N T

PRAFULLA C. PANT, J.

1. This appeal is directed against the judgment and order dated 6th
January, 2006 passed by the High Court of Madhya Pradesh in Writ Petition
No. 542 of 2004 whereby the writ petition has been allowed, and the writpetitioner is directed to be reinstated in service. It is furtherdirected by the High Court that the appellant may consider to impose thepenalty against the present respondent as was awarded in the case ofDaluram Patidar, another employee of the appellant-Corporation.
2. Brief facts of the case are that Senior Divisional Manager of Life
Insurance Corporation of India, at Shahdol in order to recruit peons (sub-
staff) invited applications from the qualified candidates through
Employment Exchange. Pursuant to that, respondent - Triveni Sharan Mishra
submitted his application. As per the qualification prescribed by theappellant, a candidate was required to have passed Standard IX, but thecandidates who have passed Standard XII and have secured 50% or more marks,Graduates or Post-graduates were not to be considered for the post. Therespondent (writ petitioner) in his application (Annexure P-3) for theabove post mentioned his qualification “Higher Secondary (XIth old)”. Atthe end of the application dated 20th January, 1996, a declaration wasmade by the candidate (writ petitioner) that he did not possess any otherqualification except the one mentioned in the application. The respondent– writ petitioner appears to have got selected for the post of Peon.However, after couple of years of his service, it was found that hepossessed Bachelor’s Degree and he was pursuing M.A.(previous) in Economicsat the time he applied for the post as above. On this, the respondent wasserved with the charge-sheet by the appellant and departmental enquiry wasinitiated. On conclusion of the departmental enquiry, the respondent (writpetitioner) was found guilty of misconduct. Consequently, he was servedwith the show-cause notice as to why he be not removed from the service.
On consideration of the reply submitted by the respondent, the Senior
Divisional Manager, L.I.C. of India, Shahdol vide his order dated 30th
October, 2000 (Annexure P-11), removed the respondent - writ petitioner
from the service. The said order was challenged by the respondent before
the Departmental Appellate Authority i.e. Zonal Manager, Life Insurance
Corporation of India, Delhi. Upon consideration of the appeal submitted by
the respondent against imposition of penalty of removal in terms of
Regulation 39(1)(f) of the LIC of India (Staff) Regulations, 1960
(hereinafter to be referred to as ‘the Regulations’) passed by the Senior
Divisional Manager, Shahdol, the Appellate Authority concurred with the
view taken by the said Authority, and dismissed the appeal on 18th
February, 2003.
3. Aggrieved by said order, the respondent filed writ petition No.
542 of 2004(s) before the High Court. The High Court after taking action
and hearing the parties found that the qualification fixed by the present
appellant that the candidate should not possess the higher qualification
than the IXth Standard, is violative of Article14 of the Constitution of
India. It further found that similarly situated another employee with the
department was inflicted with the penalty of stoppage of increments for two
years with cumulative effect, as such the punishment awarded to the writ
petitioner was discriminatory. Accordingly, the writ petition was allowed
by the High Court. Aggrieved by the said decision of the High Court, this
appeal was preferred by the employer – Life Insurance Corporation of India.
4. We have heard learned counsel for the parties and perused the papers
on record.
5. The qualification prescribed by the appellant for the post of peon,
as mentioned in Annexure P-1 reads as under:
“ b) Qualifications A pass in ST.IX. However Candidates who passed XII
Std. and have secured 50% or more marks, graduates or post graduates will
not be considered.

1. That, in your application dated 20.01.1996 for the post of Sub-
Staff, submitted to Shahdol Divisional Office of LIC of India, you have
mentioned your educational qualification as Higher Secondary (11th old),
whereas your educational qualification at that time was of Graduation
level, which was more than the desired qualification for the post of Sub-
Staff.

2. That you have got appointment for the post of Sub-Staff by
fraudulently making false statement regarding the educational
qualification, whereas you had taken admission as a regular student in
Govt. Post Graduation College Shahdol in B.A.(Final) in academic year 1989-
90 and your Roll no. was 48717 to appear in the examination. And in year
1990-91 also you had taken admission as a Regular student in M.A.(Previous)
Economics & to appear in the examination your Roll No. was 12696, which was
deliberately suppressed by you.

3. That in the declaration given on 22.03.1996 at the time of interview
also, you have suppressed your actual educational qualification and
fraudulently produced the duplicate Transfer Certificate no.79, of
Government Raghuraj Higher Secondary School no.1, Shahdol in support of
your having passed XI th standard.
( The provisional list of the documents on the basis of which the charges
are to be proved is enclosed)

Your aforesaid act, is in contravention to rules of the Corporation
and prejudicial to good conduct, thereby violating the provisions of
Regulations 21, 24 and 39(1) of the aforesaid (Staff) Regulations 1960, for
which one or more of the penalties specified under Regulation 39(1) (a) to
(g) can be imposed on you.

However, before I proceed further in the matter, I hereby give you
an opportunity to either admit or deny the aforesaid charges in writing. In
case you admit the charges, a statement of admission and in the event of
your denying the charges, a statement of denial, together with the list of
documents by which and a list of witnesses through whom you propose to
defend your case may be submitted to the undersigned within a period of 15
days from the date of receipt of this charge sheet.

In case your written statement, as mentioned above, is not received
within the stipulated period or if it is found to be unsatisfactory,
further proceedings shall ensue without any reference to you.”

7. The reply given by the writ petitioner to above charge-sheet to the
Department is quoted below:

Through Proper Channel
Dear Sir,
RE: DISCIPLINARY PROCEEDINGS UNDER REGULATION 39 OF THE LIC
OF INDIA (STAFF) REGULATIONS, 1960 AND CHARGESHEET DATED 29.02.2000, ISSUED
TO ME.
With reference to above charge sheet, my submission is as
under :

That I was an unemployed person, and I was in dire need of employment.
Therefore, when I got information regarding vacancy for the post of Sub-
Staff from Employment Exchange Office, I immediately applied for the post
of Sub-Staff.

It is true that the desired qualification for the post of Sub-Staff was
XIth pass along with other documents.

Since I was XIth passed, hence I had mentioned my educational
qualification as XIth, as the additional higher qualification was not a
constraint in fulfilling the responsibilities for the applied post, I had
not disclosed it. By doing so I did not intend to suppress my additional
qualification.

After having been appointed on the post of Sub-Staff, I have served the
Corporation with utmost integrity, honesty & capacity. And my higher
qualification has been useful in performing my duties towards the
Corporation. Thus I have not violated the regulations 21 & 24.

If I have unknowingly violated any rules & regulations, I regret for the
same. I have never intended to violate the regulations.
With my aforesaid submission, I humbly request you to
take a sympathetic view in my case and absolve me from the above referred
charges.
Yours
faithfully,
Triveni Sharan Mishra
Sub-staff, Divisional Office,
Shahdol .R.No.704768.”

8. It is not disputed before us that the respondent was already graduate
on the date he submitted his application for the post of Peon, and the
declaration made by him in Annexure P-3 at the time of seeking employment
that he possessed no other qualification was incorrect. The question
before us is as to whether the qualification as mentioned above is
violative of Article 14 of the Constitution of India or not, and as to
whether awarding punishment of removal to the writ petitioner, is
discriminatory in the light of the one awarded to similarly situated one
Daluram Patidar i.e. only punishment of stoppage of increments for two
years with cumulative effect.
9. Mr. B.B. Sawhney, learned senior counsel appearing on behalf of the
appellants heavily relied in the case of Kerala Solvent Extractions Ltd.
Vs. A. Unnikrishnan and Anr. (2006) 13 SCC 619, and it is pointed out that
in said case the maximum educational qualification for a “badli” workman
was 8th standard, and the respondent of said case had made false
declaration on which services of said workman were terminated. This Court
in said case quashed the award of the Labour Court dated 23rd March, 1992
setting aside the order of termination dated 3rd March, 1989 of the
workman, and further set aside the order passed by the High Court of
Kerala upholding the award of the Labour Court.
10. We have carefully gone through the aforesaid case law. In said case
issue involved was not whether or not maximum qualification can be fixed
for a Class-IV/Grade-D employee, nor was in said case the employer appears
to be either State or instrumentality of the State. What this Court has
held in Kerala Solvent Extractions Ltd. (Supra) is that the Court should
not be led by misplaced sympathy. Paragraphs 9 and 10 of the said judgment
are re-produced below:
“9. Shri Vaidyanathan, learned senior counsel for the appellant,
submitted, in our opinion not without justification, that the Labour
Court’s reasoning bordered on perversity and such unreasoned, undue
liberalism and misplaced sympathy would subvert all discipline in the
administration. He stated that the management will have no answer to the
claims of similarly disqualified candidates which might have come to be
rejected. Those who stated the truth would be said to be at a disadvantage
and those who suppressed it stood to gain. He further submitted that this
laxity of judicial reasoning will imperceptibly introduce slackness and
unpredictability in the legal process and, in the final analysis, corrode
legitimacy of the judicial process.

10. We are inclined to agree with these submissions. In recent times,
there is an increasing evidence of this, perhaps well meant but wholly
unsustainable tendency towards a denudation of the legitimacy of judicial
reasoning and process. The reliefs granted by the courts must be seen to
be logical and tenable within the framework of the law and should not incur
and justify the criticism that the jurisdiction of the courts tends to
degenerate into misplaced sympathy, generosity and private benevolence. It
is essential to maintain the integrity of legal reasoning and the
legitimacy of the conclusions. They must emanate logically from the legal
findings and the judicial results must be seen to be principled and
supportable on those findings. Expansive judicial mood of mistaken and
misplaced compassion at the expense of the legitimacy of the process will
eventually lead to mutually irreconcilable situations and denude the
judicial process of its dignity, authority, predictability and
respectability”.

In our opinion, in the present case the High Court has rightly relied on
the law laid down by this Court in Mohd. Riazul Usman Gani and Ors. Vs.
District & Sessions Judge, Nagpur and Ors. (2000) 2 SCC 606 wherein it has
deprecated the criteria of maximum qualification for the post of peons.
Relevant parts of para 16 and para 18 of the said judgment are quoted
herein below:
“16. In the present case we find that the candidates with higher education
than Standard VII were completely shut out for being considered for the
posts of Peons. The Recruitment Rules also provide for promotion. Rule
3(ii) we may quote:

“(ii) The District Judge may promote-

a Peon, a Watchman, a Gardener, or a Sweeper to the post of Bailiff:

a Peon, a Watchman, a Gardener, a Sweeper or a Bailiff to the post of a
Regional (Language) Section Writer, an English Section Writer or a Clerk;
and

a Peon, a Watchman, a Gardener, a Sweeper, a Bailiff, a Regional
(Language) Section Writer, and English Section Writer or a Clerk to the
post of Stenographer”.

Xx xx xx xx xx

18. If the appointment of a candidate to the post of Peon is
restricted to his having qualified up to Standard VII he will have no
chance of promotion to the post of Regional Language Section Writer or
Clerk……………….”.

12. However, on behalf of the appellants it is contended thatsuppression of material information and making false statement to securethe employment, is a serious offence to attract the dismissal of service.
In this connection, learned senior counsel for the appellants referred to
the case of Kendriya Vidyalaya Sangathan and Ors vs. Ram Ratan Yadav (2003)3 SCC 437. But in our opinion, the aforesaid case referred on behalf of
the appellants cannot be applied to the present case for the reason that
in the said case the employee had concealed the facts relating to his
character and antecedents. In said case, the employee who was selected for
the post of a Teacher suppressed the information that a criminal case
relating to offences punishable under sections 323, 341, 294, 506-B read
with section 34 of Indian Penal Code was registered against him. As such
the facts in the present case cannot be equated with the case referred.
13. From the papers on record before us, it appears that for mentioning
less qualification to secure the job, similarly situated another employee
(one Daluram Patidar) was let off by the Life Insurance Corporation of
India by awarding punishment of stoppage of increments for two years with
cumulative effect. We are of the opinion that the High Court has rightly
taken note of said fact while allowing the writ petition, and directing the
employer to consider the imposition of similar penalty after reinstatement
of the writ petitioner.
14. Therefore in view of the above discussion, we do not find any
sufficient reason to interfere with the impugned order passed by the High
Court. Accordingly, the appeal is dismissed. No order as to costs.